N7863
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 794 OF 2016

THE STATE

V

SYLVESTER TIVAT

Kerevat:  Anis J
2019: 10 & 16 May

CRIMINAL LAW – No case to answer application – offence – sexual penetration of a child – section 229 A(1), (2) and (3) – Criminal Code Act Chapter No. 262 - identification – whether evidence adduced were insufficient or tenuous to the identity the defendant – date of alleged incident – whether inconsistencies in date of alleged incident a relevant consideration – consideration of the two (2) limbs

Cases Cited

State v. Roka Pep [1983] PNGLR 287
State v Tom Tomugal (2016) N6329
State v Patrick Masit (2017) N6997

Counsel

Ms J. Batil, for the State
Mr R. Asa, for the Accused

RULING ON NO CASE

16 May, 2019

1.	ANIS J:	The defence made a no case to answer application on 10 May 2019.  I reserved my ruling to today at 9:30am.  

2.	This is my ruling.

BACKGROUND

3.	The State alleges that the defendant sexually penetrated the victim (victim) who was under the age of 12 and 16 years old.  The State also alleges that at the material time, there was a relationship of trust, authority or dependency, between the defendant and the victim.  With these, the State says that the defendant’s action contravened section 229A(1)(2) and (3) of the Criminal Code Act Chapter No. 262 (the Criminal Code).  

4.	According to the brief facts, the alleged incident occurred at a village called Tavuiliu.  It is situated in the central Gazelle District of East New Britain.  It is alleged that on 8 January 2016, between 5pm and 6pm, the defendant abducted the victim, who was then 12 years old, to a house.  The said house where the incident allegedly took place is traditionally known by tolai custom as a sacred house.  It is called Taraui or tolai men’s dwelling area.  Inside the Taraui, it is alleged that the defendant used a bush-knife to threaten the victim to undress herself.  It is alleged that the defendant later pushed the victim to the ground where he sexually penetrated the victim by inserting his penis into her vagina.  After the sexual act, it is alleged that the defendant threatened the victim with the bush-knife and told her that he would cut her if she reported the incident to her mother.  That afternoon, the victim reported the incident to her mother.

5.	The State presented its indictment on 18 April 2019.  The trial began at the Kokopo National Court.  The State tendered several exhibits and called two (2) witnesses, namely, the victim herself and her mother.  At the close of the State’s case, the defence indicated that it would make a no case to answer application.  The matter was then adjourned to this month’s National Court circuit in Kerevat.

TWO LIMBS

6.	The defence did not expressly say which of the two (2) limbs, as held in the case State v. Roka Pep [1983] PNGLR 287, it would invoke.  But based on submissions by counsel, it was clear that the defence had invoked both limbs.  I note that State counsel Ms Batil has acknowledged that when queried by the Court, so in this case, I will address both limbs.

7.	The two (2) limbs as held in Roka Pep of course are, (i), whether the State evidence adduced have each of the elements of the offence, and, (ii), subject to the first limb, whether the evidence of the elements of the offence are tenuous and if so whether the Court should exercise its discretion and stop the proceeding.  See also the case of State v. Tom Tomugal (2016) N6329.

ISSUES

8.	In my view, the main issues are, (i) whether the State has adduced sufficient evidence in relation to the identity of the defendant, and (ii), whether the inconsistent dates of the alleged incident should warrant this Court to exercise its discretion and stop the proceeding.  

ELEMENTS – SECTION 229A

9.	The elements of sexual penetration of a child under section 229A(1)(2) & (3) of the Criminal Code are, (i), the accused engaged in an act of sexual penetration with another person, (ii), the other person was a child under the age of 16 years or 12 years old, and (iii), there existed at the material time a relationship of trust, authority or dependency between the accused and the victim child.

10.	The parties are at common grounds that the victim is below the age of 16 years old.  I note that the State has also called evidence to establish this element of the charge.  I note however that the defence has also claimed that the victim was or may be over 12 years old at the material time; that she was not below 12 years old.  The argument, I note, is of course relevant in relation to section 229A(2) of the Criminal Code.  It reads in part, and I quote, If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.  The argument in my view is valid but I note that it may be raised later and not now, that is, if the Court is minded to allow the trial on verdict to continue.  Not addressing it now, I note, does not prejudice the right of the defendant from raising it later.

IDENTITY

11.	The victim was the only person who testified to say that it was the accused that sexually assaulted her that afternoon. The defence argues that if the victim had been carried by the assailant to the Taraui as she describes in her testimony then it would not have been possible for the victim to see or identify her attacker.  The defence also argues that the victim was not usually at the village, and as such, that she would not have been familiar with the defendant so she has mistakenly identified the accused as the assailant.

12.	The prosecution argues otherwise.  It says the abduction and sexual assault occurred during day time.  It says the victim knew the defendant before the incident.  It says the incident occurred over a longer period so the victim would have had more opportunity and time to see, recognise and identify the defendant.

13.	I have considered the victim’s evidence.  I note that she gave three (3) accounts of how she said she saw the defendant that afternoon.  The first encounter was when she went to her house to check whether her family had arrived.  She said she saw the defendant standing outside the door of their house.  She said the defendant ran away when he saw her approaching.  The second account was when she returned to her house shortly after to leave some store goods.  She said as she was about to walk back from the house, the defendant came from behind her, closed her month, lifted and carried her away to the Taraui.  The third encounter was at the Taraui where she saw the defendant before, during and after the alleged sexually assault on her. 

14.	To me, I see that there are State evidence adduced which identify the defendant.  As to whether the evidence are not credible, inconsistent or whether less weight should be given, these may require full considerations by the Court, that is, if I am minded to allow the proceeding on verdict to continue.  I therefore find the defence argument on identification not relevant at this stage.  

DATE OF INCIDENT

15.	Let me now deal with the issue concerning the date of the incident.  The defence submits as follows.  It says the date of the alleged incident which is 8 January 2016, as pleaded in the indictment, is inconsistent with State evidence.  Counsel refers to one of the questions in the record of interview of the victim whereby the interviewer had referred to the date of the incident as 8 February 2016.  Counsel also submits that the victim and her mother, in their testimonies, refer to the date of the incident as 6 January 2016.  

16.	The State submits that these were mistakes but that it does not mean that the incident did not occur and that the matter should go for a full trial.  It submits that the inconsistency can be explained.  And the State maintains the date inserted in the indictment as the correct date of the alleged incident, that is, 8 January 2016.  The State also says that the date of the incident is corroborated by other evidence that have been tendered by consent.

17.	I note the arguments by both counsel.  I have considered the law and case law.  In my view, I will refuse the defence arguments for two (2) reasons.  Firstly, I note that inconsistencies, weighing of evidence or credibility of witnesses, are valid arguments but that this is not the correct time for me to consider them.  Secondly, I note that the date of the incident is not an element of the offence.  I say this in view of and to which I will adopt as my own, what Justice Cannings has said in the case State v. Patrick Masit (2017) N6997.  At paragraph 13, His Honour stated, and I quote in part:

An incorrect date on an indictment does not make the indictment defective or lead to an acquittal. Section 534(1)(c) of the Criminal Code provides that an indictment is not open to objection “for stating imperfectly the time at which the offence was committed”. This reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an element of the offence (The State v Titeva Fineko [1978] PNGLR 262, The State v Horris Raraka CR No 38 of 2003, 07.05.07). In this case, the date does not form an element of the offence. The defence as to the allegedly incorrect date fails.

RELATIONSHIP – SECTION 229A(3)

18.	Section 229A(3) of the Criminal Code reads, and I quote in part, (3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

19.	I note that the defence, during cross-examination of the victim, tries to indicate to the Court that the defendant is not related to the victim.  I, however, note the State evidence on the subject matter which shows that the defendant is related to the victim.  At this stage, that is all I need to have before me to determine if there is State evidence in regard to section 229A(3) of the Criminal Code.  In this case, I see that there is State evidence which says that the defendant is a close relative of the victim.  Full arguments of course may be raised at the trial proper such as inconsistencies, credibility or weighing of evidence.

20.	I also note that evidence adduced to prove this fact under section 229A(3) is not material for this purpose.  It is not crucial to this application.  In my view, it cannot be regarded as a relevant consideration (element) which can determine the outcome of the no case to answer application.   Its relevance, in my view, would be at the trial on verdict where if it is established together with the mandatory elements of the offence under section 229A, it would make the defendant liable to being sentence to life imprisonment.

SUMMARY

21.	For these reasons, I find that the defendant has a case to answer in relation to the charge against him.  I find that State evidence adduced contain the elements of the offence of sexual penetration of a child under section 229A of the Criminal Code.  I also do not find the State evidence tenuous to an extent where I should exercise my discretion and stop the proceeding.

22.	I will refuse the no case to answer application and order the trial to continue.

ORDERS OF THE COURT

23.	I make the following orders:

1.	The defendant’s no case to answer application is refused.

2.	The trial on verdict shall continue.
________________________________________________________________
Office of the Public Prosecutor:	Lawyer for the State
Warner Shand Lawyers:	Lawyer for the Accused